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Wang v. United States Citizenship and Immigration Services

United States District Court, District of Columbia

January 16, 2018

SIQING WANG, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN UNITED STATES DISTRICT JUDGE.

         Plaintiff Siqing Wang challenges the manner in which the United States Citizenship and Immigration Services handled her 1-526 immigrant visa petition. Her suit names four defendants: the United States Citizenship and Immigration Services; Jeh Johnson, former Secretary of the Department of Homeland Security; Leon Rodriguez, Director of the United States Citizenship and Immigration Services; and Julia Harrison, Acting Chief of the Immigrant Investor Program. Currently before me is Defendants' motion to dismiss for lack of subject matter jurisdiction and, with respect to some of Plaintiff s arguments, for failure to state a claim. Because the District Court for the District of Columbia has subject matter jurisdiction to review the actions that Plaintiff challenges, the motion to dismiss is DENIED in part. However, because the complaint does not adequately state a claim with regard to the denial of Plaintiff s motion to reopen or reconsider, the motion to dismiss is GRANTED in part and Plaintiffs claims concerning that motion are DISMISSED without prejudice.

         I. BACKGROUND

         Plaintiffs complaint alleges that she is a 23-year-old graduate student who wishes to become a permanent resident of the United States.[1] Accordingly, Plaintiff invested $500, 000 in an American business, believing that this investment would make her eligible for permanent residency under 8 U.S.C. § 1153(b)(5). The $500, 000 were proceeds of a loan secured by property that Plaintiff owned jointly with her father. Although she only held a 50% interest in the property, her father gave her his half of the loan proceeds as a gift. Plaintiff took the funds and invested them in an American business in 2014.

         Plaintiff then filed an 1-5 2 6 visa petition. On October 5, 2015, the United States Citizenship and Immigration Services (USCIS) approved the petition, concluding that she satisfied the requirements for an EB-5 immigrant investor visa. However, the USCIS initiated revocation proceedings less than two months later. On December 3, 2015, it sent her a Notice of Intent to Revoke (NOIR). The NOIR stated that Section 1153(b)(5)'s requirement of a $500, 000 investment of capital is a requirement that the investor put $500, 000 of her own capital at risk. Because Plaintiffs investment consisted of loan proceeds and she did not own $500, 000 worth of the property used to secure the loan, USCIS took the position that she had not invested sufficient capital to satisfy Section 1153(b)(5). Plaintiff responded by repeating her prior representation that her father had gifted her his share of the loan proceeds, so that all the capital she invested was her own. However, the USCIS issued a decision on February 1, 2016, informing her that her visa petition was denied. Importantly, this decision said nothing about a visa revocation.

         Plaintiff, through a new attorney, filed a motion to reopen or reconsider the USCIS's decision (MTR). The MTR argued that the decision should be reopened because the Plaintiffs prior attorney had rendered ineffective assistance in presenting and explaining the underlying loan transactions. The MTR also argued that, properly interpreted, the loan documents showed that Plaintiffs father had gifted her a portion of his interest in the property securing the loan prior to the loan's execution. U.S. CIS denied the MTR, determining, as Plaintiff had originally alleged, that Plaintiffs father "is a property owner gifting a loan amount corresponding to his property interest." Compl. ¶ 48; Pl.'s Notice of Filing, Ex. 1 at 4.

         Plaintiff then filed this suit, challenging both the denial of her visa petition and the denial of her MTR. Plaintiffs complaint named four defendants: USCIS; Jeh Johnson, then-Secretary of the Department of Homeland Security; Leon Rodriguez, the Director of USCIS; and Julia Harrison, the Acting Chief of the Immigrant Investor Program. Defendants jointly filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.

         II. PLAINTIFF HAS ESTABLISHED SUBJECT MATTER JURISDICTION

         "Federal courts are courts of limited jurisdiction" and therefore "possess only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Go. of America, 511 U.S. 375, 377 (1994). Accordingly, jurisdiction is a prerequisite that must be satisfied before proceeding to the merits, and a federal court must dismiss any action over which it determines that it lacks subject matter jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007); see also Fed. R. Civ. P. 12(h)(3). On a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing jurisdiction. Georgiades v. Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984). A plaintiff may rely on facts outside the pleadings to satisfy this burden, as "the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Natl Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

         As a general matter, federal courts have jurisdiction over actions that raise questions of federal law and over actions that name the United States as a defendant. 28 U.S.C. §§ 1331 and 1346. Moreover, the Administrative Procedure Act establishes "a strong presumption" that agency actions are reviewable-a presumption that "can be rebutted only by a clear showing that judicial review would be inappropriate." Nat. Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1043 (D.C. Cir. 1979). However, 8 U.S.C. § 1252(a)(2)(B)(ii) expressly strips federal courts of jurisdiction to review decisions "specified ... to be in the discretion of the Attorney General or the Secretary of Homeland Security, " with one exception not relevant to this case.

         Plaintiff invokes federal jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and under 28 U.S.C. § 1346 (actions naming the United States as a defendant).. Defendants' motion to dismiss does not dispute that Plaintiff has raised a federal question and named the United States as a defendant. Instead, Defendants confidently insist that "the case will be dismissed" based on persuasive authority holding that 8 U.S.C. § 1155 specifies revocation of an approved immigrant visa petition to be within the sole and unreviewable discretion of the Secretary of Homeland Security for purposes of Section l252(a)(2)(B)(ii). Defs.'MOL ISO Mot. Dismiss at 9.

         Of course, Defendants' argument is only relevant to the extent that Plaintiff seeks review of a revocation. The complaint in this case seeks review of two USCIS actions-a decision rendered on February 1, 2016 (regarding Plaintiffs visa petition), and a decision rendered on August 3, 2016 (regarding Plaintiffs MTR). The parties dispute whether the first decision should be treated as a revocation or a denial. They agree that the second decision is a denial of Plaintiffs MTR. For the reasons explained below, I conclude that neither action is a revocation. Thus, Section l252(a)(2)(B)(ii) is inapplicable, and jurisdiction is established by 28 U.S.C. §§ 1331 and 1346.

         A. Jurisdiction Over the Denial of Plaintiffs Visa Petition

         The parties agree that federal courts have jurisdiction to review the denial of a visa petition. See Fogo de Chao (Holdings) Inc. v. DHS,769 F.3d 1127, 1138-39 (D.C. Cir.' 2014)., By contrast, the great weight of persuasive authority indicates that federal courts lack jurisdiction to review revocation of a visa petition's approval. See Mohammad v. Napolitano,680 F.Supp.2d 1, 4-6 (D;D.C. 2004) (collecting cases and holding that, "by using the terms 'may, ' 'at any time, ' and 'deems, ' [Section 1155] specified that the authority to make revocation decisions was within the discretion of defendants, and therefore outside the scope of this Court's review").[2]Thus, although Plaintiff s complaint appears ...


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